State v. Britt, 310 Neb. 69

Background

Britt was convicted of three counts of first-degree murder and related weapons offenses for a triple homicide during an attempted robbery; a .40- and .22-caliber firearms were involved and a .22 revolver was recovered after being discarded.
After this Court ordered a new trial (prior appeal), Britt was retried; key testimony came from Tiaotta Clairday, who transported Britt and coconspirator Anthony Davis the night of the murders, handled and later helped dispose of a .22 revolver, and described Britt’s actions and demeanor.
Britt filed a pro se postconviction motion asserting ineffective assistance of trial counsel for failing to call impeachment witnesses (Anthony Davis; Melanie and Shawn Dvorak; two Ashland police officers) to impeach Clairday, and also sought appointed counsel and later moved for a default judgment against the State.
The district court denied postconviction relief and Britt’s other motions without an evidentiary hearing; Britt appealed.
The Nebraska Supreme Court held that (1) Davis would have been barred from testifying (would invoke Fifth Amendment) and thus could not have been called; (2) the Dvoraks’ expected testimony would be admissible only as impeachment (prior inconsistent statement) and was unlikely to change the verdict given Clairday’s credibility problems already before the jury; (3) the Ashland officers’ testimony was not raised in the verified postconviction motion and is not considered on appeal; and (4) the court could not grant a default judgment in lieu of the required evidentiary hearing under the Postconviction Act. The order denying relief was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Britt’s postconviction claim of ineffective assistance—failure to call impeachment witnesses—warranted an evidentiary hearing	Britt: trial counsel was ineffective for not calling Davis, the Dvoraks, and two Ashland officers to impeach Clairday; had they testified the verdict likely would differ	State: Davis would invoke Fifth and be barred; the Dvoraks’ hearsay would be only impeachment and would not create a reasonable probability of a different result; Ashland officers’ testimony was not preserved in the verified motion	No hearing. Davis would likely be barred; Dvoraks’ testimony would be limited to impeachment and not likely to change outcome; Ashland officers’ claim not considered on appeal.
Whether the court erred by denying Britt’s motion to appoint counsel	Britt: needed counsel for postconviction proceedings	Respondent/court: assignment not argued on appeal	Not considered—assignment inadequately briefed.
Whether the court should have entered a default judgment for Britt because the State failed to timely respond	Britt: State’s failure to timely reply warranted default judgment and relief	State/court: record does not show a default-motion record; Postconviction Act does not permit granting relief without an evidentiary hearing	Denied—record insufficient and court lacks authority to grant default judgment in lieu of required evidentiary hearing.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Ineffective assistance standard: deficient performance and prejudice)
State v. Britt, 305 Neb. 363 (Neb. 2020) (prior direct-appeal opinion addressing retrial and evidence)
State v. Clausen, 307 Neb. 968 (Neb. 2020) (courts should avoid witnesses invoking privilege before the jury; may forbid calling witnesses who will only invoke privilege)
State v. Rodriguez, 272 Neb. 930 (Neb. 2007) (prior inconsistent statements admissible for impeachment but not as substantive evidence)
State v. Jim, 275 Neb. 481 (Neb. 2008) (Postconviction Act requires evidentiary hearing and findings before granting relief)